Opinion 24-146
September 12, 2024
Digest: (1) On these facts, disclosure of ex parte communications to both sides is sufficient to dispel an appearance of impropriety.
(2) Where a JHO receives a signed letter from jurors, designated as a “formal complaint,” with a detailed factual account of how the plaintiff’s counsel berated them for their verdict in the jury room, the JHO must report the attorney to the grievance committee.
(3) After reporting the attorney, the JHO is disqualified from all matters where the attorney appears both while the disciplinary matter is pending and for two years thereafter. Remittal is unavailable unless the attorney waives confidentiality or the grievance committee issues a public opinion.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(B)(2)-(3), (6); 100.3(D)(2); 1200, Rules 3.5(a)(5)(iii) and 3.5(d); Opinions 23-138; 23-113; 23-36; 20-195; 19-35; 17-53; 10-85.
Opinion:
The inquiring judicial hearing officer (JHO) recently presided over a jury trial. After a defense verdict, plaintiff’s counsel entered the jury room and confronted the jurors. The JHO subsequently received a signed letter from the jurors, seeking to make a “formal complaint” that the attorney used “an intimidating and angry tone” and subjected them to an “aggressive interrogation” about their verdict. The jurors provided a detailed factual account to support their view that the attorney’s “behavior fell far short of [professional] standards” and “could have a chilling effect on future jury pool recruitment.”[1] Separately, the JHO received a letter from the plaintiff questioning whether justice was truly served and enclosing an unsigned letter, purportedly from an anonymous juror, claiming that the jury disregarded the plaintiff’s case due to their dislike of plaintiff’s counsel. The JHO has already forwarded the letters to counsel for both sides but asks if he/she must do anything further.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). With certain exceptions not relevant here, a judge must “not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties or their lawyers concerning a pending or impending proceeding” (22 NYCRR 100.3[B][6]). A judge must “require order and decorum” in the court (22 NYCRR 100.3[B][2]) and must require attorneys to be “patient, dignified and courteous” to jurors (22 NYCRR 100.3[B][3]). A judge who receives information indicating a “substantial likelihood” that an attorney has committed a “substantial violation” of the Rules of Professional Conduct must take “appropriate action” (22 NYCRR 100.3[D][2]).
A judge’s ethical obligations regarding an ex parte communication are determined by its “content, context and circumstances” (Opinion 20-195 [citations omitted]). While the exact obligations may vary, we have also said that an impermissible ex parte communication, if it occurs, may generally be dispelled by disclosing it to all sides (see e.g. Opinions 23-138; 17-53). Here, the JHO forwarded copies of all the letters to counsel for both sides. On the circumstances presented, we conclude that disclosure is sufficient to dispel an appearance of impropriety.
This does not end the inquiry, as we must also consider the JHO’s possible disciplinary obligations under Section 100.3(D)(2). A judge generally has discretion to determine whether the threshold two-prong test is met, i.e. whether there is a “substantial likelihood” that an attorney has committed a “substantial violation” of the Rules of Professional Conduct. If the two-prong test is satisfied, the judge must take “appropriate action,” but what action is appropriate under the circumstances is also ordinarily left to the judge’s discretion (see e.g. Opinion 23-36). Reporting the attorney is not mandated unless the two-prong test is met and the alleged misconduct seriously calls into question the attorney’s honesty, trustworthiness, or fitness to practice law (see id.; 10-85).
While it is not determinative, we are mindful that the jurors’ letter here opens with the words “This letter serves as a formal complaint” and expressly alludes both to “professional standards” and to two forms of professional discipline that may be imposed on lawyers (“censure or formal admonishment”). This clearly evinces the jurors’ intent to initiate a formal disciplinary process.
On the facts presented, we conclude the “substantial likelihood” prong is satisfied because the JHO has received a signed letter from the jurors in the case, designated as a “formal complaint,” detailing the jury’s direct personal experience with plaintiff’s counsel.
The “substantial violation” prong is also clearly met. Even after discharge of the jury, the Rules of Professional Conduct expressly forbid an attorney from communicating with a juror if “the communication involves … harassment” (22 NYCRR 1200, Rule 3.5[a][5][iii]). A lawyer must also “reveal promptly to the court improper conduct … toward a member of the venire or a juror … of which the lawyer has knowledge” (22 NYCRR 1200, Rule 3.5[d]). Notwithstanding these requirements, if the allegations in the jurors’ letter are true, plaintiff’s counsel instead personally engaged in abusive conduct toward the jurors in the jury room and outside of the JHO’s presence (cf. Opinion 23-113 [attorney allegedly made biased and harassing comments to court personnel and opposing counsel during a court appearance but outside the judge’s presence]).
In sum, according to the jurors’ formal complaint, on becoming aware of his/her client’s initial misjudgment in confronting the jury, the attorney not only failed to remedy the situation but actually compounded the error by personally berating the jurors in a manner so “aggressive” and “intimidating” that they thought it might have a “chilling effect” on the jury pool. In our view, the alleged violation is not only substantial, but calls into question the attorney’s fitness to practice law. Under these circumstances, the JHO is obligated to report the letter to the grievance committee so the matter can be investigated.
After reporting the attorney, the JHO is disqualified from all matters where the attorney appears both while the disciplinary matter is pending and for two years thereafter (see Opinion 19-35). Remittal is unavailable unless the attorney waives confidentiality or the grievance committee has issued a public opinion (see id.).
[1] According to the jurors, the plaintiff initially entered the jury room and began questioning them until interrupted by plaintiff’s counsel. Rather than attempting to remedy his/her client’s misjudgment, counsel apparently escalated the questioning until the JHO and the bailiff arrived.